JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2015
DATE OF JUDGMENT:	17 July 2015
CASE MAY BE CITED AS:	Richards v Richards
MEDIUM NEUTRAL CITATION:	[2015] VSC 335

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WILLS & ESTATES — Executor’s commission —Where the will does not provide for commission — Where defendants initially sought commission at 5 per cent in modest estate — Where defendants seek commission at 2 per cent trial — Commission allowed at 1 per cent on sale proceeds of deceased’s home — Administration and Probate Act 1958, s 65 — Supreme Court (Administration and Probate) Rules 2004, Order 10 — In the Estate of Stone (deceased); Patterson v Halliday [2003] VSC 298

COSTS — Where plaintiff beneficiary sought information from defendants concerning estate — Where defendants fail to provide timely and adequate information —Where plaintiff seeks distribution of estate — Disputes between parties adversarial — Defendants seek costs against plaintiff — Plaintiff seeks costs be taxed with directions for certain disallowances — Where costs disproportionate to the issues raised — Where defendants have no client costs agreements — Where defendants solicitor’s invoices lack sufficient detail — Supreme Court (General Civil Procedure) Rules 2005, r 63.07 — Supreme Court Act 1986, s 24 — Hall v Carney (No 2) [2012] SASCFC 105

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Lapirow	Stephens Lawyers & Consultants
For the Defendant	Mr R Young	Best Hooper

HER HONOUR:

By originating motion filed on 14 November 2014, the plaintiff, Adrian Brent Richards (‘the plaintiff’), seeks the distribution of the estate of his deceased father, Edward Bruce Richards (‘the deceased’), in accordance with his will dated 3 April 1981 (‘the will’). The principal asset of the deceased’s estate was a property at 13 Elora Road, South Oakleigh (‘the property’). In support of his claim, the plaintiff filed an affidavit affirmed 13 November 2014 (‘the plaintiff’s affidavit’).

The deceased died on 18 November 2012. Probate of the will was granted to the defendants, Garry Ashley Richards and Linda Dawn Richards (‘the defendants’), on 5 June 2013. The plaintiff is the younger brother of the defendants.

On the first directions hearing on 12 December 2014, the defendants urged that this proceeding be stayed, pending the resolution of a proceeding between the same parties issued on 9 December 2014 in the Melbourne Magistrates’ Court. The defendants’ complaint and statement of claim in the Magistrates’ Court (‘the Magistrates’ Court complaint’) claimed, amongst other matters, that the plaintiff was liable to the deceased’s estate for certain loans made to the plaintiff of $32,000 by either the plaintiff’s mother or the deceased commencing in about 2003. Of this amount, the plaintiff claimed that $18,000 was a gift (‘the loan/gift issue’). The Magistrates’ Court complaint sought repayment of $32,000 to the estate plus…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Richards v Richards

Details

AGLC: Richards v Richards [2015] VSC 335
Case: [2015] VSC 335
Decision Date: 17 July 2015

CaseChat Overview and Summary

The case of Richards v Richards involved a dispute over executor's commission in the context of a modest estate where the deceased's will did not specify any commission for the executors. The defendants, who were the executors, initially sought a commission of 5 per cent but later reduced their claim to 2 per cent at trial. The primary issue before the court was to determine the appropriate commission to be paid to the executors, considering the estate's modest nature and the absence of a stipulated commission in the will.

The court considered the statutory framework provided by the Administration and Probate Act 1958, particularly section 65, which allows for the court to determine a reasonable commission. The court also referred to relevant case law such as In the Estate of Stone (deceased); Patterson v Halliday [2003] VSC 298 and the Supreme Court (Administration and Probate) Rules 2004. Given the modest value of the estate, primarily consisting of the deceased's home, the court deemed a 2 per cent commission excessive and ultimately allowed a commission of 1 per cent on the sale proceeds of the deceased's home.

Further, the case addressed issues of costs, where the plaintiff beneficiary sought information from the defendants regarding the estate, but the defendants failed to provide timely and adequate information. The plaintiff then sought distribution of the estate amidst adversarial disputes between the parties. The defendants argued for costs against the plaintiff, while the plaintiff sought to have the costs taxed with specific disallowances. The court found that the costs claimed were disproportionate to the issues raised and considered the lack of client cost agreements and insufficiently detailed invoices from the defendants' solicitor. The court applied the Supreme Court (General Civil Procedure) Rules 2005 and the Supreme Court Act 1986, ultimately making orders to tax the costs with specific disallowances as per Hall v Carney (No 2) [2012] SASCFC 105.

The final orders of the court not only determined the executors' commission at 1 per cent but also addressed the costs dispute by taxing the costs with certain disallowances, reflecting the disproportionate nature of the costs claimed and the lack of adequate justification provided by the defendants.

Orders